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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 97-700

THE STATE OF NEW HAMPSHIRE

v.

GUY HATT

October 25, 1999

Philip T. McLaughlin, attorney general (Janice K. Rundles,
senior assistant attorney general, on the brief and orally), for the State.

Behzad Mirhashem, assistant appellate defender, of Concord, by
brief and orally, for the defendant.

BROCK, C.J. The defendant, Guy Hatt, was convicted after a bench trial in
Superior Court (Conboy, J.) of armed robbery. See RSA 636:1 (1996). We
affirm.

The following undisputed facts were adduced at trial. In January 1997, the
defendant entered a store in Hollis, pointed an unloaded handgun at the cashier, and
demanded that she give him the money in the cash register. As he left the store, he warned
that if she called the police, he would kill her.

The defendant was charged with robbing the store while being actually
armed with a deadly weapon. See RSA 636:1, III(a). He conceded that he could be
convicted of robbery, a class B felony. See RSA 636:1, I. He asserted, however,
that because the gun was not loaded at the time of the robbery, it was not a "deadly
weapon" for purposes of RSA 636:1, III(a), and that he could not be convicted of
armed robbery, a class A felony, as charged in the indictment. The trial court concluded
that the gun constituted a "deadly weapon," found the defendant guilty of armed
robbery, and sentenced him pursuant to RSA 651:2, II-g (Supp. 1998). See RSA 636:1,
III. This appeal followed.

The sole issue on appeal is whether an unloaded handgun constitutes a
"deadly weapon" as defined by RSA 625:11, V (1996). We conclude that it does.

"In matters of statutory interpretation, this court is the final
arbiter of the intent of the legislature as expressed in the words of a statute considered
as a whole." Dow v. Sears, Roebuck & Co., 143 N.H. 166, 167, 720 A.2d 598,
598 (1998) (quotation omitted). We construe provisions of the Criminal Code
"according to the fair import of their terms and to promote justice." RSA 625:3
(1996). Although we look to the plain and ordinary meaning of the statutory language in
determining legislative intent, we will not read the words and phrases in isolation, seeState v. Powell, 132 N.H. 562, 567, 567 A.2d 568, 571 (1989), or add words that the
legislature chose not to include, seeState v. Harnum, 142 N.H. 195, 197,
697 A.2d 1380, 1382 (1997).

As used in the Criminal Code, "deadly weapon" is defined as
"any firearm, knife or other substance or thing which, in the manner it is used,
intended to be used, or threatened to be used, is known to be capable of producing death
or serious bodily injury." RSA 625:11, V. The defendant argues that because an
unloaded firearm is incapable of producing death or serious bodily injury, it does not
meet this definition. The State counters that the language "capable of producing
death or serious bodily injury" modifies only the phrase "other substance or
thing." Even assuming that the phrase "capable of producing death or serious
bodily injury" applies to firearms, butseeState v. Riley, 703
A.2d 347, 350 (N.J. Super. Ct. App. Div. 1997), we conclude that the defendant's handgun,
as he threatened to use it in this case, was known to be capable of producing death or
serious bodily injury.

The defendant argues that unloaded firearms are "intrinsically
incapable of causing death." The defendant reads the phrase "capable of
producing death or serious bodily injury" in isolation. In context, the legislature
defined "deadly weapon" as a weapon which is knowntobe
capable of producing death or serious bodily injury. According to the defendant, however,
"[t]he phrase `known to be' limits the definition to those objects that are actually
capable, and known to be capable of causing death or serious bodily injury."
We disagree.

The term "known" is commonly understood as meaning
"generally recognized." Webster's Third New International Dictionary 1253
(unabridged ed. 1961). Thus, the legislature clearly intended to limit the definition of
deadly weapon to those instruments which are objectively understood to be capable
of causing death or serious bodily injury in the manner in which they are used, intended
to be used, or threatened to be used. Cf. State v. Rines, 413 A.2d 643, 644
(N.J. Super. Ct. Law Div. 1980); accordState v. Butler, 445 A.2d 399, 404
(N.J. 1982). The legislature did not require the State to prove that a particular weapon
is actually capable of causing death or serious bodily injury, and we will not add
that requirement. Moreover, although the legislature has not defined the term
"firearm," we have interpreted it to mean a "weapon [that] is designed to,
or is capable of, discharging a shot by gunpowder, [but not necessarily] capable of
discharge at the time of the offense." State v. Taylor, 136 N.H. 131, 133, 612
A.2d 917, 919 (1992). The defendant has offered no argument persuading us that this
interpretation should not apply to RSA 625:11, V. Thus, we will not add a requirement
under RSA 625:11, V that the State prove that a firearm in a particular case was loaded.
The legislature could have added this requirement if it so desired, as it clearly has in
other contexts. See, e.g., RSA 212:17 (1989).

The defendant also argues that if actual capability of causing death or
serious bodily injury is not required to prove that a weapon is deadly, a defendant could
be convicted under RSA 636:1, III(a) of armed robbery if the defendant threatened to shoot
the victim with a realistic-looking toy gun. Thus, he argues that RSA 636:1, III(b), which
elevates robbery to armed robbery if the defendant "[r]easonably appeared to the
victim to be armed with a deadly weapon," would be rendered superfluous. We disagree.
Threatening to fire a toy gun is not objectively understood to be capable of causing death
or serious bodily injury. SeeRines, 413 A.2d at 644. Thus, RSA 636:1,
III(a) would not apply in that scenario.

The defendant does not contest that he threatened to shoot the victim if
she did not comply with his demand for money, or if she called the police. We conclude
that a firearm, threatened to be fired at a person, is generally understood to be capable
of causing death or serious bodily injury. Cf. McLaughlin v. United States,
476 U.S. 16, 17 (1986). Accordingly, we hold that the trial court did not err in
concluding that the handgun in this case was a deadly weapon.